Monday, September 01, 2008

Search Incident to Arrest of a Blackberry

This post is about whether police can search a Blackberry carried by an arrestee without getting a warrant to do so.

That is, it's about what's known as "search incident to arrest."

As Wikipedia explains, search incident arrest is a traditional exception to the 4th Amendment’s requirement that police get a warrant before searching a place or a person.

The Supreme Court has held that when an officer arrests someone, it is “reasonable” under the 4th Amendment for the arresting officer to search the person’s clothing and whatever he or she might be carrying, like a bag or a briefcase. I wrote about the exception in an earlier blog post.

In U.S. v. Carroll, 537 F.Supp.2d 1290, a 2008 decision from the U.S. District Court for the Northern District of Georgia, a defendant moved to suppress evidence obtained by searching (we’ll get back to that in a minute) his Blackberry. Here’s a summary of the facts in the case:

On February 20, 2007, federal agents obtained a warrant to arrest Jeremiah Carroll on charges of conspiracy to distribute marijuana. On March 9, 2007, Carroll, accompanied by his attorney, surrendered to law enforcement officers at their offices. He was carrying a backpack when he surrendered. Law enforcement officers searched the backpack . . . and discovered a Blackberry.

The Blackberry's functions include a cellular telephone, which has both temporary and permanent memory. The temporary memory contains, for example, a `recent calls’ list. The permanent memory contains more static, stable data, such as a programmable `contact’ list of names, addresses, and phone numbers. The `recent calls’ list is dynamic and changes every time the Blackberry receives a call. The `contacts’ list changes only when changes are inputted.

Law officers searched and recorded the contents of the Blackberry's `contacts’ list. The Government seeks to introduce some of the contents of the `contacts’ list at trial.

U.S. v. Carroll, supra.

The question was whether the search of the Blackberry violated the 4th Amendment. Carroll said it did, filing a motion to suppress evidence obtained from the contacts list.

In ruling on his motion to suppress, the U.S. District Court explained that it raised two issues: The first was whether the agent’s going through the contacts list and recording its contents was a “search” under the 4th Amendment. The other issue arises only if going through the contacts list was a “search;” if it was, then it had to comply with the requirements of the 4th Amendment, i.e., it had to have been conducted pursuant to an exception to the 4th Amendment’s warrant requirement (since the agents did not get a warrant to search the Blackberry).

As to the first issue, the court noted that neither the prosecution nor Carroll had briefed whether

the search of the Blackberry constituted a `search’ for Fourth Amendment purposes, because they apparently assume that it did. This is not necessarily true. `”[T]he State's intrusion into a particular area ... cannot result in a Fourth Amendment violation unless the area is one in which there is a ‘constitutionally protected reasonable expectation of privacy.”' New York v. Class, 475 U.S. 106 (1986). Even inherently personal things, like the contents of a conversation, are not protected by the Fourth Amendment if conducted in a way that defeats a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). A person's status under the law is directly relevant to the analysis. Parolees, for example, have a significantly diminished expectation of privacy, and may be subjected to searches that would be unconstitutional if directed against non-criminal citizens. . . . . Prisoners have no reasonable expectation of privacy. . . .

Carroll voluntarily surrendered himself . . . at law enforcement offices. He elected to bring his backpack, which contained his Blackberry. He elected not to delete the contents of the `contacts’ list before his surrender. The Court is not convinced that Carroll had a reasonable expectation of privacy in the contents of the Blackberry's memory when he surrendered himself for arrest. The parties have not briefed, and the Court will not here decide, whether one who voluntarily surrenders himself for arrest, with time in advance to contemplate his belongings and with the advice of counsel, has a reasonable expectation of privacy in those belongings. The Court requests further briefing on whether Carroll had a reasonable expectation of privacy in the contents of his Blackberry.

U.S. v. Carroll, supra. So here, the court’s actually doing the prosecution a favor: It’s raising the possibility that the agents’ looking through the contacts list on the Blackberry was not a search, which means they didn’t need a warrant or an exception to the warrant requirement for the search to be valid under the 4th Amendment.

Now the defense is going to have to convince this court that Carroll did have a 4th Amendment expectation of privacy in the backpack, even though he brought it with him when he surrendered. I think he does.

If you’re walking down the street carrying a backpack, a police officer can’t simply search your backpack (having stopped you and told you to hand it over) because you DEFINITELY have a 4th Amendment expectation of privacy in its contents. It seems to me, then, that this court is wrong in raising the issue as to whether it was a “search” for the agents to go through Carroll’s backpack when he surrendered; I think the prosecution and defense were absolutely correct in assuming it was a search (because, IMHO, it was). I think this court is confusing the issue of whether we HAD a search with the other issue it had to address – the issue as to whether the search was reasonable under the 4th Amendment.

When Carroll filed his motion to suppress the information obtained from his Blackberry, the U.S. District Court referred the motion to a federal magistrate, which is common in the federal system. The federal magistrate analyzed the facts and the law and wrote what’s called a Report and Recommendation, which the magistrate submitted to the federal handling Carroll’s case. This procedure is a way of helping federal district court judges get through all the motions and other matters they have to decide a little more expeditiously; instead of starting from scratch, a judge only has to decide if he/she agrees with the magistrate’s Report and Recommendation.

In the Carroll case, the magistrate said the search of the Blackberry was a valid search incident to arrest because Carroll had the backpack with him when he was arrested. As I noted earlier, the scope of the search incident to arrest exception to the 4th Amendment warrant requirement encompasses things someone is carrying when they are arrested, like a backpack or a briefcase. The magistrate in this case found that the search incident exception applied to the search of the Blackberry because the Blackberry was in the backpack and Carroll had the backpack with him when he was arrested.

Carroll argued that the magistrate’s Report and Recommendation was wrong, and he won . . . a little bit. The federal district court judge held that he needed more evidence and more arguments on the law before he could decide this issue:

When a person is arrested, `it is reasonable for the arresting officer to search the person . . . to remove any weapons that the latter might seek to use to resist arrest or effect his escape.’ Chimel v. California, 395 U.S. 752 (1969). The Supreme Court has also found it `reasonable for the arresting officer to search for and seize any evidence on the arrestee's person . . . to prevent its concealment or destruction.’ . . .

[T]his and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, how contemporaneous the search must be relative to the arrest, and whether the search is limited to a phone's dynamic memory. . . . Carroll voluntarily surrendered . . . and . . . brought his backpack, containing the Blackberry, to law enforcement offices. . . . Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

U.S. v. Carroll, supra.

I think this is an important issue. The search incident exception arose at a time when the only things someone had on their person or in the things they carried when they were arrested were pretty straightforward: a wallet, keys, other personal items, all stuff that only told officers a little bit about a person. Even an address book or a calendar only tells officers a little bit about the person. A Blackberry or a mobile phone can contain a LOT more information than any of these sources, and so can a laptop.

If this court finds – and other courts agree – that the search of a Blackberry is a valid search incident to arrest, then what about a laptop? If arresting officers can go through a Blackberry as part of a search incident to an arrest, can they go through the files on a laptop under the same rationale?